OTTAWA – “What the Alberta decision makes me fearful of is that we could, without legislation in place on June the 6th, be in an environment where there is no ability for a person to go to a Superior Court judge and get an exemption. That exemption opportunity ends as of June the 6th.” – Justice Minister Jody Wilson-Raybould, May 18, 2016.
Jody Wilson-Raybould signalled last week the Liberal government is concerned about what will happen if there is no legislation in place when the Supreme Court of Canada’s landmark decision comes into effect next month.
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The government has been stressing the need to pass its bill quickly while it is up against the wall on the deadline set by the top court. Its proposed legislation is slated to clear the Commons next week before it is shipped over to the upper chamber, where it is expected to be closely scrutinized.
A number of senators have already indicated they have concerns about the constitutionality of the bill and have proposed a number of amendments.
As meeting the June 6 target becomes less and less likely, how accurate is Wilson-Raybould’s claim that the so-called “exemption opportunity” ends next month?
Spoiler alert: Baloney Meter is a dispassionate examination of political statements culminating in a ranking of accuracy on a scale of “no baloney” to “full of baloney” (complete methodology below).
Wilson-Raybould’s statement earns a rating of “some baloney.” The statement is partly accurate, but important details are missing. Here’s why:
In February 2015, the high court recognized the right of consenting adults enduring intolerable physical or mental suffering to end their lives with a doctor’s help. The court then suspended its decision for a year to allow for Parliament and provincial legislatures to respond with legislation that would be consistent with the constitutional parameters set out by the court.
In January, the court agreed to add four months to the federal government’s deadline for producing a new law, but with an exemption for anyone who wished to ask a judge to end his or her life earlier. The government proceeded to introduce C-14 – a controversial bill that has been critiqued by a number of legal experts and groups including the Canadian Bar Association.
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The concepts driving the legislation have also been the subject of a judicial rebuttal. In a decision handed down last week, the Alberta Court of Appeal noted the rationale behind the government’s proposed legislation does not comply with the high court’s landmark decision. The ruling noted the Supreme Court did not “require the applicant to be terminally ill to qualify.”
“The decision itself is clear,” it said. “No words in it suggest otherwise. If the court had wanted it to be thus, they would have said so clearly and unequivocally. They did not.”
Grace Pastine, the litigation director of the B.C. Civil Liberties Association, said it is true the so-called exemption opportunity ends as of June 6th, but she characterized Wilson-Raybould’s statement as “completely misleading.”
Critically-ill Canadians will have access to physician-assisted dying – even if there is no law passed by June 6 – because there will no longer be a need to seek a court exemption and the top court’s ruling takes effect, Pastine noted. Physician-assisted dying will be regulated by the provincial and territorial health care laws as well as the standards of the medical profession, she added, noting patients will also be required to meet the criteria set out by the Supreme Court.
“Physicians will follow the directives of their governing medical colleges … In short, this will be a medical decision that will be made by critically ill patients and their physicians,” Pastine said.
NDP justice critic Murray Rankin, a public law expert, also sees Wilson-Raybould’s remarks as off base. The minister is correct to suggest a federal law would promote more reliable access across Canada, but she is wrong to suggest only a federal law can provide it, Rankin noted.
Rankin also pointed to the fact the Alberta Court of Appeal decision highlights how the concepts in the government’s proposed legislation are more narrow than the Supreme Court’s original ruling.
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Ubaka Ogbogu, an assistant law professor at the University of Alberta, stressed an absence of legislation will simply mean no one can be prosecuted as of June 6 for doing exactly what the Supreme Court ruled can be done.
“There is no legal vacuum (as the government has suggested),” he said. “The Supreme Court decision becomes the law and it will then fall to health care practioners, primarily, to decide, if and how they are going to implement that criteria.”
Carissima Mathen, a law professor at the University of Ottawa, said the minister’s statement is confusing on its face but she senses Wilson-Raybould was referring to the procedures developed by the courts to evaluate whether the conditions outlined in the Supreme Court’s decision are in fact satisfied.
“I doubt the minister of justice is deliberately misleading in the sense that an exemption is no longer apt because the law will cease to be in effect for a certain class of persons,” Mathen said.
“My reading of what she was saying is even that level of scrutiny by the judiciary will cease to happen as of June 6 because … the courts are no longer authorized to consider exemptions.”
Trudo Lemmens, a law professor at the University of Toronto who specializes in health law and policy, said the minister’s remarks are reasonable. Most physicians can and indeed should be reluctant to actively participate in life-ending actions in the absence of a legislative
framework, he noted.
“Other provisions of the criminal code can apply,” he said. “And we should also be worried about those who feel all too comfortable to be involved in life-ending measures without additional safeguards in place and clear criteria.”
Lemmens also noted the Alberta court dealt with its interpretation of the original Supreme Court ruling, not with the constitutionality of the proposed legislation.
Those who say that courts will reject the constitutionality of the bill, simply by looking at what the Alberta Court of Appeal ruled, are making premature statements, he said.
Wilson-Raybould’s claim that patients will no longer be able to go to a Superior Court judge to seek an exemption as of June 6 is confusing for a number of reasons. However, the minister is correct to note the exemption opportunity will cease to exist on this date. For these reasons, the minister’s statement receives an assessment of “some baloney.”
The Baloney Meter is a project of that examines the level of accuracy in statements made by politicians. Each claim is researched and assigned a rating based on the following scale: